Once upon a time, search warrants were simple. An officer would obtain a warrant to search a suspect’s home or some other physical location connected to a crime. The officer would go to the location, announce his or her presence, and conduct the search. But these days, officers frequently want to obtain records and other evidence from businesses not suspected of any wrongdoing. For example, they want bank records that can be used to trace the suspect’s ill-gotten gains. They want cell site location information that can be used to tie the suspect to the crime scene. And they want email records that show communication between the suspect and his or her coconspirators. Officers do not typically kick down these businesses’ doors and start rummaging around, partly because that would be needlessly disruptive and partly because officers might have a hard time locating evidence stored in the cloud or on a server located who-knows-where. Instead, officers obtain a search warrant, then send a copy of the warrant to the company in question and ask the company to search its own records and provide responsive materials. Is that OK?
business records
Introducing a Defendant’s Medical Records in a DWI Trial
I have previously written about how the State may obtain the medical records of a person suspected of or charged with impaired driving. This post focuses on the requirements for admitting those records at trial.
Business Records: Posts, Chats, and Texts
Several prior posts on this blog have addressed authenticating and admitting digital evidence like social media posts and text messages (see here, here, here, and here) and we’ve also previously covered the basic rules and requirements for using the business records hearsay exception (see here, here and here), but we’ve not yet explored the questions and issues that arise when those two topics collide.
For example, if the state obtains a complete copy of a suspect’s account records from Facebook, Twitter, or AT&T, including user-generated content such as messages, chats, texts, and posts, can that evidence be admitted as a business record? I recently had an opportunity to talk about digital evidence with prosecutors in several other states, and there are opposing views in different jurisdictions about the correct answer to this question. This post looks at the conflicting interpretations, the North Carolina guidance we have so far, and an interesting alternative approach.
Rule 803(6): Please Hold for the Next Available Representative…
A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.
What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up.
Hearsay Exceptions: Business Records
Continuing my series on commonly used hearsay exceptions, we arrive, in this post, at the business records exception. This one comes up a lot in criminal cases. Here are the basics. Covered Records. The exception applies to “a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses.” N.C. … Read more
Authentication and Hearsay Issues with Phone Records
Suppose that the state wants to introduce the defendant’s phone records, in order to show that he called the victim in violation of a DVPO. The state subpoenas the records, and the phone company provides them, along with an affidavit from an appropriate employee stating that they are business records. Armed with the records and … Read more